When a claimant has less than a total degree of disability they have an obligation to remain attached to the labor market. If the claimant’s treating physician(s) opine the claimant has a partial disability (anything less than 100%) or there has been a finding by the Board that the claimant has a partial degree of disability (either permanent or temporary) the claimant has a legal duty to continue to search for work within his/her restrictions.
If the claimant has less than a total degree of disability, it is recommended that you send the claimant work search forms (link to PDF file) to document their work search efforts. If the claimant fails to return the work search forms, or returns the forms and it does not appear that his/her work search is valid then you should request a hearing to address the claimant’s attachment to the labor market. If the claimant has retained legal representation, the work search forms should be sent to the legal representative. The Board should be copied on your correspondence sent with the work search forms.
The Board will then likely schedule a hearing to address the issue. At that time, defense counsel should request the matter be set down for the claimant’s testimony regarding their work search efforts. It is relatively easy for a claimant to show that they are attached to the labor market, but it does require some effort on their part. If it can be shown that the claimant is no longer attached to the labor market the insurance company may be allowed to suspend the claimant’s weekly payments until they produce evidence that they have re-attached to the labor market.
The seminal New York Workers’ Compensation case addressing labor market attachment is American Axle [link to Full Board Decision]. This case sets forth the criteria a claimant must meet in order to demonstrate they are attached to the labor market and entitled to continuing Workers’ Compensation benefits.
It is important to note that it is not enough for a claimant to simply testify that they have applied for jobs. The Board in American Axle held:
While an independent job search is encouraged, absent documentation verifying a timely, diligent, and persistent outreach to potential employers for work within the medical restrictions, there is no credible evidence upon which to find an attachment to the labor market. At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer.
It is also recommended that following the claimant’s testimony regarding specific employment applications or documented work search efforts that the carrier follow up with the employers the claimant alleges he/she applied for employment. The best method to follow up is to subpoena the employers to obtain employment applications. Even if the claimant did apply for work, often the employment applications will prove that the claimant was not truly searching for work within their work restrictions or were only searching for part-time work when the medical evidence indicates they are capable of working full-time with specific restrictions.